Minnesota Senate Bill 1863

Summary

Minnesota Senate Bill 1863 would require any publisher to remove an arrest photo upon request if the person in the photo was not convicted. If the person in the photo was convicted, the publisher must limit the information about the picture to the person’s first name, last initial and crime of conviction.

The legislation would also require any publisher who seeks access to an arrest photo to explain how the image will be used and every location it will appear. Any re-publisher who receives the image from a publisher who obtained the picture from the state must also file this information.

Status

The bill failed to pass out of the Senate Judiciary Committee by deadline. It is dead as a standalone bill.

Analysis

Arrest photo legislation allows O.J. Simpson or Lee Harvey Oswald’s estate to request any website to take down any personal information or images about them. States cannot impose control over the editorial content of publishers, and this legislation does so by requiring publishers to limit information associated with an arrest photo to the person’s first name, last initial and the crime charged.

The bill does not fit into one of the historic exceptions to the First Amendment, so it must satisfy strict constitutional scrutiny. The first part of the test requires the government to articulate a legitimate and compelling state interest. Though privacy is an important right, the Supreme Court has ruled that it is not sufficient to overcome the right of free speech. The second part of the test requires the government to prove that the speech restriction serves that interest. But an arrest photo cannot be removed from a book or documentary film, so the legislation is intended to apply to only online publication. The bill then fails to accomplish the state interest in preserving privacy, because the same information could still be published in other medium or with another picture.

The legislation does not require that the person requesting that the information be removed live in Minnesota nor does the website subject to the removal request need to be located in the state. This violates the Commerce Clause, because it gives Minnesota power over publishers in other states.